PENNSYLVANIA – A federal appeals court pondered the meaning of “I (Heart) Boobies” on Tuesday, hearing oral arguments but giving no firm indication how it might rule in a middle school free speech dispute.
The case involves middle school students in the Easton Area School District who wore bracelets with the “I (Heart) Boobies” phrase despite a school ban. The students claim they were promoting breast cancer awareness; school officials argue the phrase is an inappropriate double-entendre.
A federal judge last year sided with the students, ruling the ban violated their First Amendment rights. A three-judge panel of the 3rd U.S. Circuit Court of Appeals on Tuesday heard the school’s appeal in the case.
It appeared all but certain the dispute would turn on whether the bracelets are “lewd” or “vulgar” within the meaning of a 1986 Supreme Court decision. In that case, Bethel School District v. Fraser, the high court upheld discipline imposed on a Washington high school student who gave a class speech full of sexual innuendo.
Attorney John Freund, representing the school district, argued that even if the bracelets are not lewd, they can banned as “disruptive” under the Supreme Court’s Tinker standard. At least two of the judges seemed skeptical.
“If you’re going to win here, it has to be Fraser not Tinker,” Judge Thomas Hardiman said, citing the Third Circuit’s 2011 decision that a parody MySpace profile mocking a school principal did not cause sufficient “disruption” to be punishable under Tinker, the Supreme Court’s landmark case on student First Amendment rights.
Both sides appeared to agree that context matters. Freund emphasized the bracelet must be understood in the context of the entire phrase – not just a single word.
“We’re not here to demonize the word ‘boobies,’” Freund said.
ACLU attorney Mary Catherine Roper, representing the students and their parents, said the bracelets must be analyzed in the context of the national breast cancer awareness campaign. The bracelets also included the name of the foundation that produces them, “Keep A Breast,” and the group’s website address.
“Fraser simply cannot be the only student speech context in which context doesn’t matter,” Roper said.
The lawyers spent much of the argument debating the importance of the students’ intent. Roper argued that the students intended the bracelets to promote awareness, not to make a lewd statement. Freund countered that intent doesn’t matter under recent precedent – the key, he said, is the “reasonable perception” of the speech.
Hardiman appeared to agree, pressing Roper to read aloud the parts of the Fraser opinion that support her position.
“I don’t understand how the intent of the speaker is relevant in light of Fraser,” he said. The judges also seemed to struggle with whether a whole range of slogans would have to be permitted if they rule for the students.
Judge Joseph Greenaway asked about a testicular cancer bracelet with the phrases “I Heart Penis” or “Feel My Testicles.” Roper conceded that the latter could probably be prohibited at school.
Freund said the lower court “completely and utterly failed” to provide enough deference to school administrators, calling the middle school context a “witch’s brew” of testosterone that officials must have the authority to control.
Judge Morton Ira Greenberg, skeptical of Freund’s suggestion that every school would need a constitutional magistrate, suggested the case would be different in a high school or college setting.
The Easton case is one of several lawsuits over the Keep A Breast bracelets in recent months. A Wisconsin judge declared the bracelets lewd and upheld a similar ban by a school in that state. The student dropped the suit in March. A third case is pending in Indiana.
The cases will help define the limits of school officials’ authority to punish speech they consider lewd or inappropriate.
“We cannot define the First Amendment by the point at which a 13-year-old boy giggles,” Roper said.
It will likely be several months before the appeals court rules.